Sorry for posting news on wtatalk, but I think this case is extremely
interesting, and reveals the bankruptcy of the human/non-human
distinction. I think the WTA should issue a statement saying that we
object to these odious distinctions. - J.

Marvel Fought to Have Characters Ruled
Nonhuman to Win Lower Tariff on Toys

By NEIL KING JR.

Staff Reporter of THE WALL STREET JOURNAL

Judge Judith Barzilay huddled late last year with a telepathic professor
and a cast of mutants to ponder an age-old question: What does it mean
to be human?

In her chambers at the U.S. Court of International Trade, in New York,
the judge examined Prof. X and the rest of his band of X-Men, all of
them little plastic figures at the heart of a six-year tariff battle
between their owner, Marvel Enterprises Inc., and the U.S. Customs
Service.

Her ruling thundered through the world of Marvel Comics fans. The famed
X-Men, those fighters of prejudice sworn to protect a world that hates
and fears them, are not human, she decreed Jan. 3. Nor are many of the
villains who do battle with Spiderman and the Fantastic Four. They're
all "nonhuman creatures," concluded Judge Barzilay.

Marvel subsidiary Toy Biz Inc. pushed Judge Barzilay to declare its
heroes nonhuman so it could win a lower duty rate on action figures
imported from China in the mid-1990s. At the time, tariffs put higher
duties on dolls than toys. According to the U.S. tariff code, human
figures are dolls, while figures representing animals or "creatures,"
such as monsters and robots, are deemed toys.

To Brian Wilkinson, editor of the online site X-Fan
(x-mencomics.com/xfan/), Marvel's argument is appalling. The X-Men --
mere creatures? "This is almost unthinkable," he says. "Marvel's super
heroes are supposed to be as human as you or I. They live in New York.
They have families and go to work. And now they're no longer human?"

X-Men's Wolverine: Man or beast?

Chuck Austen, current author of Marvel's "Uncanny X-Men" comic-book
series, is also incredulous. He has worked hard for a year, he says, to
emphasize the X-Men's humanity, to show "that they're just another
strand in the evolutionary chain."

The X-Men series broke new ground when it began in 1963 by confronting
racism and intolerance head-on. The good-hearted mutants rallied around
their mentor, the wheelchair-bound Prof. Charles Xavier, to protect
mankind, even as humans shunned and despised them.

In 1996, Toy Biz sued Customs in the Court of International Trade, which
arbitrates foreign-trade disputes between U.S. companies and the
government. Toy Biz said its pantheon of action figures should be
classified as toys instead of dolls. Customs insisted the figures are
dolls, and thus subject to 12% import duties, instead of the 6.8% rate
for toys. Duties have since been eliminated from both categories.

Thus began the great debate over the figures' true being. Barbie is a
doll. Pooh Bear's a toy. That much is easy.

But what about Wolverine, the muscular X-Man with the metal claws that
jut out from his fists? Wolverine has known many forms in his more than
40 years as a Marvel character. In some comics, he resembles a
futuristic robot. In the movie "X-Men," he's a scruffy Canadian who
drives a camper until falling under the protection of the telepathic
Prof. Xavier, dean of an academy for gifted mutants in suburban New
York.

But is he human?

To weigh that question, Judge Barzilay sat down with a sheaf of opposing
legal briefs and more than 60 action figures, including Wolverine,
Storm, Rogue and Bonebreaker.

Toy Biz, in its filings, pulled no punches. The figures "stand as potent
witnesses for their status as nonhuman creatures," the company argued.
How could they be humans, Toy Biz said, if they possessed "tentacles,
claws, wings or robotic limbs?"

Toy Biz had good cause to pursue this line. Having its action figures
declared toys would mean a hefty reimbursement of past duties, though
the company declines to give specifics on how much was at stake.

The U.S. government showed more feeling. Each figure had a "distinctive
individual personality," the federal legal team argued. Some were
Russians, Japanese, black, white, women, even handicapped. Wolverine,
the government insisted, was simply "a man with prosthetic hands."
Justice Department lawyers who handled the case didn't return calls
seeking comment.

Judge Barzilay, through a spokesman, said that she would let her 32-page
decision speak for itself. But she described in her ruling how she
subjected many of the figures to "comprehensive examinations." At times,
that included "the need to remove the clothes of the figure."

The X-Men, oddly, gave her the least trouble. They are mutants, she
declared, who "use their extraordinary and unnatural ... powers on the
side of good or evil." The judge observed how the character Storm, with
her flowing white hair and dark skin, "can summon storms at will," while
Pyro has a "mutant ability to control and shape flames."

Thus the X-Men are "something other than human." Case closed.

Tougher for the judge were figures from the Fantastic Four and Spiderman
series. Judge Barzilay wrestled at length with Kraven, a famed hunter
who once vanquished Spiderman, thanks in part to the strength gained
from drinking secret jungle elixirs.

The judge found that Kraven exhibited "highly exaggerated muscle tone in
arms and legs." He wore a "lion's mane-like vest." Both features helped
relegate him, in the judge's mind, to the netherworld of robots,
monsters and devils.

Judge Barzilay conceded that the closest call was the Mole Man, who once
blinded the Fantastic Four with searing beams of light. The judge found
him to be "stout and thick," with "exaggerated troll-like features" and
very pale skin -- fitting for someone who lives underground. Given all
that, Judge Barzilay concluded, the Mole Man was more mole than man.

Veteran comics fan Christian Cooper, who once worked as a Marvel editor,
thinks Judge Barzilay got carried away. If Kraven isn't human, what
about the twisted villains in Dick Tracy? Or worse yet, Superman
himself?

"Here's a guy who changes his clothes in a phone booth and flies through
the air," says Mr. Cooper. "Does that mean he's now an animal?"

"Who ever thought that this particular model
of the body is forever? A little, mammalian,
furry body, it forever? Sometimes I notice
my body. It has little fur, little fangs,
ears still slightly pointed. We are
spiritual beings still in animal bodies and
it always struck me as weird."
Barbara Marx Hubbard